SWITZERLAND Law and Practice Contributed by: Lukas Morscher and Lukas Staub, Lenz & Staehelin
(see 10.3 Classification of Blockchain Assets ). Since then, FINMA has issued further guidelines on money laundering on blockchain, stablecoins and, most recently, staking services. In 2021, new legislation designed to increase legal certainty by removing hurdles for DLT- based applications and limiting risks of misuse entered into force. In a nutshell, the legislative amendments include: • a civil law change aimed at increasing legal certainty in the transfer of DLT-based assets; • the possibility of segregation of crypto-based assets in the event of bankruptcy; and • a new authorisation category, called DLT trading facilities, where such facilities may provide services in the areas of trading, clear - ing, settlement and custody with DLT-based assets (see 6.1 Permissible Trading Plat- forms ). Overall, these legislative amendments increase market access for fintech companies in the DLT/ blockchain field by improving legal certainty and removing certain regulatory barriers. 10.3 Classification of Blockchain Assets FINMA guidelines define three types of token. • Payment tokens are synonymous with cryptocurrencies and offer no further func - tions or links to projects. They may, in some cases, only gain the necessary functionality and become accepted as a means of pay - ment over a period of time – FINMA requires compliance with AML regulations but does not treat such tokens as securities. • Utility tokens are tokens that are intended to provide access to a digital functionality or a service; they do not qualify as securities,
chain service providers, AMINA Bank (formerly Seba) and Sygnum. Driven by the fast-moving industry, traditional players such as banks are also increasingly offering services in relation to digital assets and blockchain-related business - es. For example, many of the incumbent banks now offer custody and trading for digital assets. However, few banks have built their own custody and trading infrastructure (eg, Swissquote); most banks rely on a handful of specialised players. Some banks have recently been conducting pilots – eg, in the tokenising of traditional assets or in blockchain-based payments, which seem to be further areas of interest for traditional play - ers. Also of note is the Swiss National Bank’s ongoing Project Helvetia, piloting wholesale central bank digital currency with participating institutions. Several industry bodies, such as the Swiss Bankers Association, Crypto Valley Association and the Capital Market and Technology Asso - ciation, are promoting the growing blockchain- based business model for traditional and new players alike. 10.2 Local Regulators’ Approach to Blockchain In Switzerland, the general rules largely apply with regard to risks, liability, intellectual property, AML and data privacy. Regarding the application of the existing regu - lations on tokens and ICOs, FINMA published corresponding guidelines in 2018. Generally, FINMA focuses on the economic function and purpose of the tokens, as well as whether they are tradeable or transferable, in order to clas - sify them as either payment tokens (including cryptocurrencies), utility tokens or asset tokens. The classification of the tokens has an impact on the applicable legal and regulatory framework
823 CHAMBERS.COM
Powered by FlippingBook